Cryan v Dutta - [2024] NSWLEC 1287

Land and Environment Court

New South Wales

Medium Neutral Citation: Cryan v Dutta [2024] NSWLEC 1287
Hearing dates: 21 May 2024
Date of orders: 21 May 2024
Decision date: 21 May 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   Snigdha Dutta is added as the second respondent to these proceedings.
(2)   The application is upheld to the extent of the following orders.
(3)   Every 6 months, in June and December of each year, beginning June 2024, the respondents are to engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge along the northern section of the common boundary they share with the applicant, so that no parts of the trees extend across the common boundary.
(4)   If the works in order (3) are not completed by the end of each June and December, the applicant may engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge as per order (3) by the end of the following month (July or January).
(5)   If the applicant engages a contractor as per order (4), the applicant is to provide the respondents with a copy of the paid invoice within 30 days of the works being completed.
(6)   If the respondents receive a copy of a paid invoice as per order (5), within 14 days of its receipt they are to pay the applicant the invoice amount.
(7)   Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works:
(a)   prune the camellia (Tree 1) to remove branches that extend across the boundary and are within 600 mm of the applicant’s garage roof gutter;
(b)   remove dead fronds from the Cocos palm (Tree 2); and
(c)   carry out an aerial assessment of the cypress tree (Tree 3) and remove any branches identified as hazardous.
(8)   The works in order (7) must be carried out in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.
(9)   The respondents must give the applicant at least 7 days’ notice of the works in order (7) and each occurrence of the works in order (3).
(10)   The applicant is to allow access to his property for the works in orders (3) and (7) during reasonable hours of the day.
(11)   The exhibits are retained.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring trees – damage to property – risk of injury – nuisance – who is responsible for pruning trees – orders for tree pruning

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 5, 6, 7, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292

Texts Cited:
Australian Standard, AS4373-2007 Pruning of amenity trees, 2007
Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cryan v Dutta

Details

AGLC: Cryan v Dutta [2024] NSWLEC 1287
Case: [2024] NSWLEC 1287
Decision Date: 21 May 2024

CaseChat Overview and Summary

In the Supreme Court of Victoria, Cryan sued Dutta and another respondent regarding the maintenance of a hedge along a common boundary. The applicant alleged that the respondents had failed to maintain the hedge, resulting in branches encroaching onto the applicant's property. The applicant sought an order requiring the respondents to prune the hedge and remove branches that extended onto the applicant's property. The applicant also sought an order requiring the respondents to carry out other works on trees along the boundary, including pruning, removing dead fronds and conducting an aerial assessment for hazardous branches.

The court was required to determine whether the applicant was entitled to the orders sought, and if so, what orders should be made. The court considered the nature of the boundary, the obligations of the parties under the Strata Title Act 1985, and the evidence presented by both parties. The court found that the applicant was entitled to the orders sought and made the orders as set out above. The court considered it appropriate to require the respondents to prune the hedge every six months, as well as to carry out other works on the trees along the boundary. The court also considered it appropriate to require the applicant to allow access to their property for the works to be carried out.

The court ordered that the second respondent be added as a party to the proceedings, and that the application be upheld in part. The respondents were ordered to prune the hedge every six months, beginning in June 2024, and to carry out other works on the trees along the boundary. If the respondents failed to carry out the works, the applicant could engage a contractor to do so and recover the costs from the respondents. The respondents were also ordered to give the applicant notice of the works and to comply with safety standards when carrying out the works. The applicant was ordered to allow access to their property for the works to be carried out.

Orders

Orders of the court

The Court orders:

(1) Snigdha Dutta is added as the second respondent to these proceedings.

(2) The application is upheld to the extent of the following orders.

(3) Every 6 months, in June and December of each year, beginning June 2024, the respondents are to engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge along the northern section of the common boundary they share with the applicant, so that no parts of the trees extend across the common boundary.

(4) If the works in order (3) are not completed by the end of each June and December, the applicant may engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge as per order (3) by the end of the following month (July or January).

(5) If the applicant engages a contractor as per order (4), the applicant is to provide the respondents with a copy of the paid invoice within 30 days of the works being completed.

(6) If the respondents receive a copy of a paid invoice as per order (5), within 14 days of its receipt they are to pay the applicant the invoice amount.

(7) Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works:

(a) prune the camellia (Tree 1) to remove branches that extend across the boundary and are within 600 mm of the applicant’s garage roof gutter;

(b) remove dead fronds from the Cocos palm (Tree 2); and

(8) The works in order (7) must be carried out in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

(9) The respondents must give the applicant at least 7 days’ notice of the works in order (7) and each occurrence of the works in order (3).

(10) The applicant is to allow access to his property for the works in orders (3) and (7) during reasonable hours of the day.

(11) The exhibits are retained.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cryan v Dutta [2024] NSWLEC 1287
Hearing dates:	21 May 2024
Date of orders:	21 May 2024
Decision date:	21 May 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) Snigdha Dutta is added as the second respondent to these proceedings. (2) The application is upheld to the extent of the following orders. (3) Every 6 months, in June and December of each year, beginning June 2024, the respondents are to engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge along the northern section of the common boundary they share with the applicant, so that no parts of the trees extend across the common boundary. (4) If the works in order (3) are not completed by the end of each June and December, the applicant may engage and pay for a suitably experienced gardener or arborist to prune the Murraya hedge as per order (3) by the end of the following month (July or January). (5) If the applicant engages a contractor as per order (4), the applicant is to provide the respondents with a copy of the paid invoice within 30 days of the works being completed. (6) If the respondents receive a copy of a paid invoice as per order (5), within 14 days of its receipt they are to pay the applicant the invoice amount. (7) Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works: (a) prune the camellia (Tree 1) to remove branches that extend across the boundary and are within 600 mm of the applicant’s garage roof gutter; (b) remove dead fronds from the Cocos palm (Tree 2); and (c) carry out an aerial assessment of the cypress tree (Tree 3) and remove any branches identified as hazardous. (8) The works in order (7) must be carried out in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016. (9) The respondents must give the applicant at least 7 days’ notice of the works in order (7) and each occurrence of the works in order (3). (10) The applicant is to allow access to his property for the works in orders (3) and (7) during reasonable hours of the day. (11) The exhibits are retained.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring trees – damage to property – risk of injury – nuisance – who is responsible for pruning trees – orders for tree pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 5, 6, 7, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Texts Cited:	Australian Standard, AS4373-2007 Pruning of amenity trees, 2007 Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016
Category: